38 Colo. 393 | Colo. | 1906
delivered the opinion of the court:
This was an action in support of an adverse, filed by the owner of the Spar Lode Mining Claim against the application for a patent on the Iva C. Claim. The verdict and judgment were for the defendant.
The discovery cut relied on by the defendant in support of his application for a patent, was in the westerly part of his claim as described in the location certificate and as staked on the ground. The discovery cut of the plaintiff was in the northeasterly part of the territory inclosed by the same boundaries. The area in conflict between the claims, as they were respectively staked upon the ground, embraced the discovery cut of the plaintiff, but not that claimed by the defendant. The location of plaintiff was not initiated until years after the initiation of defendant’s claim and the expiration of the legal time for
“The court instructs you, that the purpose of the law in requiring the staking of the boundaries of a mining claim, and the filing of a location certificate, is twofold: first, to define the part of the public domain which the locator desires to appropriate as against the government; and, secondly, to give notice to other locators of his location and its extent and lines upon the public domain. In this case it is admitted by the locator of the Spar claim, that when he entered upon and within the lines of the Iva G. lode, to mate his location, he knew that the claim had been surveyed for patent, and the boundaries were marked upon the ground, and the situs of the claim
The following part of the instruction was cer.tainly erroneous: “It is admitted by the locator of the Spar claim, that when he entered upon and within the lines of the Iva C. lode to make his location he knew that the claim had been surveyed .for patent, and the boundaries were marked upon the ground, and the situs of the claim was familiar to him, and he also knew that the defendant had posted his patent plats and notices, as required by law;
under this state of facts the plaintiff must be considered a trespasser unless he shall prove to you, by a fair preponderance of evidence, that at the time of such entry upon the Iva O. ground he honestly believed the ground so entered to be unoccupied and unappropriated public domain, open to location. ’ ’ The jury was here told that it was necessary for the plaintiff to honestly believe the ground embraced in the Iva O. boundaries to be unoccupied and unappropriated public domain, open to location, before he could initiate his location upon such claim. This is not the law. If defendant’s location was invalid because of the absence of a discovery cut at the time plaintiff made peaceable entry, then the territory
We repeat, if defendant had taken with reference to his claim all the steps enumerated in this
We find other instructions which correctly announce the law on this point, but we cannot say that the jury was not misled by the above instructions. The case was of a character requiring a careful charge. ' The defendant had taken substantial steps to effect a location. The plaintiff entered upon defendant’s claim knowing of defendant’s attempted location, and knowing that he was within the staked boundaries of defendant’s claim. The sympathies of the jury were naturally with the defendant. The rights of the plaintiff should have been carefully guarded by the instructions of the court. The error as to the charge in this case doubtless arose, as so frequently occurs, from the unnecessarily great length and number of instructions. Here the instructions were lengthy, and about thirty-five in number. We urge upon the trial courts the necessity of grasping the vital issues in a case, and directing the jury to them briefly and simply. Other errors are assigned, unnecessary to notice. Judgment reversed.
Chief Justice Gabbert and Mr. Justice Maxwell concurring. _